Frustrated USS Cole case judge retiring from military service

The military judge who ordered a Marine general to serve 21 days confinement in a Guantánamo trailer park for contempt of court — a conviction that a federal court recently overturned as illegal — is retiring after 26 years of service, the Pentagon said Thursday.

Air Force Col. Vance Spath "has an approved retirement date of Nov. 1, 2018," Air Force spokeswoman Brooke Brzozowske said in a one-sentence email response to a question from McClatchy. She did not say when the colonel submitted his paperwork for retirement.

Spath has been chief of the U.S. Air Force judiciary since April 2014. He has also been serving as the judge in the USS Cole case at Guantánamo since the summer of 2014. He did not respond Thursday to efforts by McClatchy to reach him via his social media accounts.

Spath drew national attention for his November conviction of Marine Brig. Gen. John Baker after summary contempt proceedings, making Baker the first U.S. citizen to be convicted of a crime at the war court created by President George W. Bush to try suspected foreign war criminals in the aftermath of the 9/11 terror attacks.

At issue was a decision by Baker, the chief defense counsel for military commissions, to release three defense attorneys from the USS Cole case. The attorneys said they had an ethical obligation to quit after Spath forbade them to investigate their discovery of a listening device hidden in the confidential attorney-client meeting room at the U.S. Navy base in Cuba. Spath said only he, as the case judge, had the power to release defense attorneys of record. He several times ordered Pentagon paid defense attorneys Rick Kammen, Rosa Eliades and Mary Spears to return to the capital case; they refused.

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Guantánamo inmate Abd al Rahim al Nashiri, held by the CIA from 2002 to 2006, is accused of plotting al-Qaida's suicide bombing of the warship that killed 17 U.S. sailors off Aden, Yemen, on Oct. 12, 2000. He could face military execution, if he is convicted.

In February, Spath declared his frustration over uncertainty of the mechanics of military commissions and halted all pretrial proceedings in the case, pending clarification of his authority from higher courts. “I am abating these proceedings indefinitely,” he declared Feb. 16 before walking off the war court bench at Guantánamo. “We’re done until a superior court tells me to keep going.”

At the time, Spath mentioned that he was weighing retirement.

Last month, a federal judge ruled that Spath “acted unlawfully when he unilaterally convicted" Baker "of criminal contempt and sentenced him for that contempt" at the Guantánamo war court on Nov. 1, 2017. Spath sentenced the general to 21 days confinement and to pay a $1,000 fine. Because the brig at the Guantánamo Navy base was not operating at the time, the Air Force judge instead confined him to his quarters — a trailer park behind the war court compound, called Camp Justice.

Marine Brig. Gen. John Baker

The Pentagon overseer released the general from his confinement after two nights in the trailer as a federal court was weighing whether the Air Force judge had deprived the Marine general of due process.

As of Thursday there was no notice of Spath's pending retirement on the USS Cole case docket at a Pentagon website for military commissions.

Nashiri's prosecutors have asked a Pentagon panel, the U.S. Court of Military Commission Review, to clarify a range of questions Spath raised, including the scope of war court contempt authority as well as who has the power to release attorneys of record from ongoing proceedings.

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James Parlier, who was aboard the USS Cole at the time of al-Qaida's attack off Yemen on Oct. 12, 2000. Here, he speaks to reporters on Dec. 16, 2016, at Camp Justice, U.S. Navy base Guantánamo Bay, Cuba.